Just last week I proclaimed to our inimitable editor D.A. Jeremy Telman that I was renewing my vows to the blog. Since that promise, Hurricane Sandy happened and I am without power and water. So, I have to claim impracticability. I will start posting again shortly.

At right is a drawing of the Ballantine brewery in Newark as it appeared in the late 19th century. Founded in 1840, the brewery grew to be one of the largest in the United States by the end of the 19th century. Recognizing that nobody without a gut full of beer could enjoy the American passtime, Ballantine cleverly partnered with the New York Yankees. Through its partnership of that storied team, Ballantine grew to become the third most popular beer in the United States.

Sadly, in the 1960s the brand declined. As Judge Friendly recounts in his opinion for the Second Circuit in Bloor v. Falstaff Brewing Corp., in 1969, the brewery suffered the indignity of acquisition by a real estate conglomerate with no experience in brewing. After bleeding money for a few years, the conglomerate sold Ballantine to Falstaff Brewing Corporation in return for some cash and a promise to use "its best efforts to promote and maintain a high volume of sales" of Ballantine beer. If it ceased to sell the beer entirely, the contract provided for liquidated damages.

Falstaff chose not to promote Ballantine beer. It's marketing strategy was summarized by Falsataff's controlling shareholder as follows: We sell beer, F.D.B. the brewery. You come and get it. That didn't work very well for Ballantine, and its volume of sales plummeted. The trustee of what remained of Ballantine sued alleging breach of the best efforst clause and seeking liquidated damages. Judge Friendly's conclusion is summarized below:

Bloor v. Falstaff Brewing Corp. Limerick

Falstaff had to adhereTo its deal to sell Ballantine
beer.Volume’s not killerWhen there’s Bud, Coors and Miller.Still, its efforts must be sincere.

Chris Claydon, the Managing
Director of a New Zealand based company, Profile Technology, Ltd. (Profile Tech.),
has brought suit against the social networking giant, Facebook, alleging
breach of contract, interference with business relationships, defamation, and
unlawful, unfair and fraudulent business practices. Claydon’s Complaint alleges that Profile
Tech. and Facebook entered into an agreement in 2008 allowing Profile Tech. to
acquire Facebook data by automated “crawling,” for the purpose of creating a service called Profile Engine. Profile Engine became
the world’s first search engine dedicated to Facebook. However, according to the Complaint, without
notice, Facebook cut off the access Profile Tech. needed to continue its
venture shorty after October 13, and began a “malicious” defamation campaign,
thereby damaging Profile Tech.’s business and reputation.

Facebook Founder, Mark Zuckerberg

Claydon
claims the agreement was partially written (via emails) and partially implied
through the parties’ conduct, As consideration, Facebook gained a search
engine more powerful than any of its own tools.
According to the Complaint, after months of disruption, Facebook denied
the existence of an agreement maintaining that Profile Tech.’s data was
obtained without authorization and that Profile Tech. sold the information to background services
without Facebook’s or its users’ permission. When Profile Tech confronted Facebook, the latter allegedly wrote a letter to
Profile Tech. demanding that it “go out of business” and threatening that if it did not do so, “Facebook would escalate
its efforts” to punish Profile Tech. When Profile Tech. refused these demands, Claydon contends Facebook did,
in fact, punish Profile Tech. by informing Facebook users that Profile Tech was
“unsafe” and “spammy,” and disabled both Profile Tech.’s and Claydon’s Facebook
page, which were used to communicate with customers, and indeed, with Facebook
itself.

Claydon
further alleges that Facebook interfered with access to its other applications,
independent of Profile Engine (IQ Test, Survey, Polling, etc…) Facebook’s actions were allegedly purposeful
and malicious and as such, require punitive damages in addition to compensation
for lost profits and defamation. In
addition, Claydon requested an injunction to prevent Facebook from any further
defamation it is allegedly employing against Profile Tech.

Claydon states that
Facebook breached the implied duties found in every contract: to deal fairly and in good faith, and refrain
from doing anything that would have an ill effect on, or injure the rights of
the other party’s receiving the fruits of the contract.